Martin v. White, 82-0086-CV-W-1-R.

• Decision Date: 05 May 1982
• Docket Number: No. 82-0086-CV-W-1-R.,82-0086-CV-W-1-R.
• Parties: Frederick MARTIN, Petitioner, v. Carl WHITE, Superintendent, Missouri Training School for Men, Respondent.
• Court: U.S. District Court — Western District of Missouri

538 F. Supp. 326

Frederick MARTIN, Petitioner, v. Carl WHITE, Superintendent, Missouri Training School for Men, Respondent.

No. 82-0086-CV-W-1-R.

United States District Court, W. D. Missouri, W. D.

May 5, 1982.

Frederick Martin, pro se.

John Ashcroft, Atty. Gen., of Mo., Lew A. Kollias, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

JOHN W. OLIVER, District Judge.

I.

This is still another State habeas case filed by the above petitioner. Earlier proceedings are reported in 411 F.Supp. 1069 (W.D.Mo.1975); 423 F.Supp. 884 (W.D.Mo. 1976); 433 F.Supp. 921 (W.D.1977), 568 F.2d 583 (8th Cir. 1977), cert. denied 435 U.S. 975, 98 S.Ct. 1623, 56 L.Ed.2d 69 (1978). On May 29, 1981, in case No. 78-0248-CV-W-1-R, in an unreported opinion, we denied petitioner's Illinois v. Allen 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) claim. On November 25, 1981 the Court of Appeals for the Eighth Circuit in No. 81-1737, in an unreported order, affirmed that denial pursuant to the Eighth Circuit Rule 14.

II.

Petitioner's most recent habeas petition presents the following two claims:

(a) It was error and abuse of discretion for the trial judge to refuse to grant a continuance in order for the petitioner to obtain another counsel where present counsel(s) were ineffective and unwanted;

(b) It was error not to suppress the In-court identification of witnesses Varsalona and Bell where it varied dramatically from the identification given immediately following the commission of the crime.

In the response filed by the Attorney General's office it is properly conceded that the petitioner exhausted all available state post-conviction remedies on direct appeal. The Attorney General's office, however, added that "under the facts of this case, respondent feels it is necessary to discuss the possible dismissal of this action under 28 U.S.C. § 2254, Rule 9, for abuse of the writ of habeas corpus." The respondent relies upon the views stated in Part III-C of Rose v. Lundy, ___ U.S. ___ at ___, 102 S.Ct. 1198 at 1203, 71 L.Ed.2d 379, decided 1982, but not yet reported, to support that contention.

The conclusion stated in Part III-C of Rose v. Lundy, the construction given Rule 9(b) and the reading given Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) therein, reflect the views of only four Justices of the Court: Justice O'Connor, joined by Chief Justice Burger, Justice Powell and Justice Rehnquist. Justice Brennan's opinion, joined by Justice Marshall, accurately states that the plurality conclusion stated in Part III-C of the opinion does not have the support of a majority of the Court. That opinion noted that both Justice White and Justice Blackmun expressly rejected the plurality conclusion stated in Part III-C of the opinion. While Justice Stevens' dissenting opinion did not reach the issue, the following two paragraphs from his dissenting opinion, in our judgment, clearly reflect his like rejection of Part III-C of the plurality opinion:

The "total exhaustion" rule the Court crafts today demeans the high office of the great writ. Perhaps a rule of this kind would be an appropriate response to a flood of litigation requesting review of minor disputes. An assumption that most of these petitions are groundless might be thought to justify technical pleading requirements that would provide a mechanism for reducing the sheer number of cases in which the merits must be considered. But the Court's experience has taught us not only that most of these petitions lack merit, but also that there are cases in which serious injustice must be corrected by the issuance of the writ. In such cases, the statutory requirement that adequate state remedies be exhausted must, of course, be honored. When a person's liberty is at stake, however, there surely is no justification for the creation of needless procedural hurdles.

Procedural regularity is a matter of fundamental importance in the administration of justice. But procedural niceties that merely complicate and delay the resolution of disputes are another matter. In my opinion the federal habeas corpus statute should be construed to protect the former and, whenever possible, to avoid the latter.

It has long been the experience of this Court that creation and application of new rules of procedural niceties, designed to avoid the necessity of reaching the merits of a federal constitutional question, require the expenditure of much more judicial time than rules which are designed to require both State and lower federal courts to reach and decide the merits of such questions when properly presented under rules which, until recently, were understood and applied without difficulty by most of those courts. We therefore reject the argument that the dictum stated in Part III-C of the plurality opinion in Rose v. Lundy requires the dismissal of this case on the ground of abuse of the writ.

III.

The determination of the merits of petitioner's claims is not difficult. Petitioner's first claim relates to an alleged abuse of discretion by the State trial judge when he refused to grant a continuance. We have again reviewed the transcript and find that the factual circumstances stated in State v. Martin, 525 S.W.2d 804 (Mo.Ct.App. K.C.Dist.1975) are accurately stated. The following portion of the opinion of the Missouri appellate court shows that the rules of decision of the State of Missouri are consistent with federal standards:

In these circumstances, no abuse of discretion on the part of the trial court appears. The trial court obviously considered the move of the defendant as an effort to delay the trial rather than a bona fide action on the part of defendant to employ counsel of his own. The alleged newly employed counsel did not appear and no assurance was given as to when he might do so. The trial court was not obliged at that stage of the proceedings to grant a continuance on the basis of the defendant's statement. The request was directed to the court's discretion and the denial of the request was not error. See State v. Jefferies, 504 S.W.2d 6 (Mo.1974); State v. Lahmann, 460 S.W.2d 559 (Mo.1970); United States v. Leach, 429 F.2d 956, 963 16, 17 (8th Cir. 1970), cert. den. 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

Indeed, in concluding that the State trial judge did not abuse his discretion, the Missouri appellate court relied upon United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970), cert. den. 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). Leach is but one of many Eighth Circuit cases which state the same rule. Leach was most recently followed in United States v. Lanier, 578 F.2d 1246, 1253 (8th Cir. 1978).

IV.

In regard to petitioner's claim relating to the trial court's alleged failure to sustain the petitioner's motion to suppress the in-court identification testimony, the Missouri appellate court stated the following:

Appellant next contends that the trial court erred in failing to sustain his motion to suppress the in-court identification testimony of Varsalona and Bell. Appellant acknowledges that he can point to no out-of-court identification procedures which might have influenced the identification testimony. More significantly in this case defendant's identification was hardly an issue. He was apprehended at the scene of the crime. Bell and Varsalona saw him during the robbery and when he was arrested. There was no question that defendant was the person arrested, the sole question being the extent of his participation in the robbery. The trial court did not err in overruling the motion.

The transcript on direct appeal shows that petitioner's motion to suppress pretrial identification was allegedly based on violations of principles stated in the trilogy of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and the progeny of those cases.

The transcript further shows that a pretrial hearing was conducted and that both witness Varsalona and witness Bell were examined. The appellant's brief in the Missouri appellate court properly stated that petitioner's claim does not present a typical Wade line-up question. That brief stated:

Appellant is not asserting that the prosecution used lineups or photographs or any other discernable mechanism in order to manipulate the witnesses' pretrial identification and thereby lay the groundwork for positive and firm in-court identification. Appellant does, however, wish to call to the Court's attention the testimony of the witness Harry Bell (Tr. 182, 183) wherein he affirms that something had happened to make him more able to identify appellant (Tr. 182) and wherein he states, "Well, you see, I really—I know that face really, now." (Tr. 183). Appellant's brief, p. 18

The two pages of the testimony of witness Bell, to which reference is made, reflects that defendant's counsel on cross-examination, fully developed the point that the witness's in-court identification could be said to have been more positive than the identification made at preliminary hearing.¹

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), adopts the "totality of the circumstances" rule in cases involving eye witness identification. That case reviewed all of the Supreme Court cases relied upon by the petitioner in his motion. Application of the principles stated in those Supreme Court cases requires that we find and conclude that under the circumstances of this case we cannot say that there was any substantial likelihood of irreparable misidentification.

We therefore further find and conclude that petitioner's second claim is without merit.

For the reasons stated, it is

ORDERED that petitioner's petition for writ of habeas corpus should be and the same...